Jury Foreman

First lets explain “Voir Dire”.   In origin it refers to an oath to tell the truth, i.e., to say what is true, what is objectively accurate or subjectively honest, or both.  In the United States, it now generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury.

These are some of the general questions asked to potential jurors:

1. Is there anyone who because of medical or other important reasons cannot be available for the duration of the trial?
2. Is there anyone who suffers from any condition or situation that would make it difficult to give the parties your full attention and fair consideration if you were selected as a juror?
3. Is there anyone who has difficulty reading, writing or understanding the English language, so that it would impair your ability to understand what you hear or in court or to read the documents that may be used as exhibits?
4. Is there anyone here who is related to, or knows, or has had dealings with any of the lawyers in the case; any of the plaintiff(s); any of the defendant(s); or the following people who may testify at trial?
5. Other than what you have heard in the brief description given today of the case, does anyone know or has anyone heard anything about this case?
6. Is there anyone who has philosophical, religious or other beliefs that would prevent you from sitting and passing judgment on another person?
7. Is there anyone who believes there is something about the kind of case that I described to you that would prevent you from being fair and impartial to all parties in this case?
8. Is there anyone who believes that he or she would be unable to follow the law as I explain it to you, apply that law to the facts that you find in this case, and render the verdict required by the law as I explain it to you?

As well as questions asked to each potential juror individually, such as in Denny’s case:

Juror Number 1:  I’ve seen headlines.

Court: Based on what you’ve read or heard, have you formed any opinions as to the outcome of the case?

Juror Number 1: No.

Could you put aside what you read or heard and decide this case solely upon the evidence that you hear in this court room which is really  as a juror all you should consider?

Juror Number 1: Yes

Court: Do you  know any of the jurors here today?

Juror Number 1: No, I recognize 2 names on the witness list.

Court: Who are they?

Juror Number 1: Deputy Smith and Deputy Vose. (The Defense’s Witness List was read out loud to the Jurors also)

Court: Ok and how are you familiar with those two individuals?

Juror Number 1: They played softball at my complex.

Court: Would the fact that they may testify in this case, would that have impact on your ability to give both sides a fair trial?

Juror Number 1: I believe I could be, I would not have a bias.

Juror Number 1. He elected himself as Jury Foreman. What? Oh yes he did.

It gets more interesting though.  Denny’s family was in the court room when the jury was being selected. Except for his nephew Derek and brother Troy who were going to testify. They weren’t allowed in the court room until after they had testified.  The third day of trial, the last day, the day the defense got their turn to tell the story. The trial attorney, Michael Costello, decided that he wasn’t going to use Troy (Denny’s brother) as a witness.  He also had two other witnesses who came and sat at the court house waiting to testify but never were called.

So as a result, Troy was allowed in the courtroom to watch the proceedings on the last day.  As he watched everything he noticed immediately that he recognized Juror Number 1.  During the next break he told the co-counsel, Sean Liles, he knew that juror. He was to relay the message to the trial attorney.  Even Denny’s daughter informed the trial attorney, Michael Costello, with a response of “it’s too late now”.   So Troy sat and watched as two witnesses for the defense who also knew the juror, his Nephew Derek and his friend Joe, got on the stand and testified and Juror Number 1 just watched not saying a word. Rather the juror sat with his notepad on the side of his head as if he were sleepy or bored.  He seemed as if he had already had his mind made up and the Defense was just starting.

Troy , Derek and Joe just didn’t know the juror, they played on a pool league with him for the past five years.  Of course on opposing sides but still.  Joe and the Juror had another thing in common, they both own bars in Springfield.  How could that juror have not said anything?  Troy, Derek and Joe all signed affidavits stating how they played pool with the juror.  Troy stated in his affidavit that after Tony’s death he went to his scheduled pool game against Juror Number 1 and Juror Number 1 had even questioned Troy about the death. He further stated that he took over doing announcements at Juror Number 1’s bar before during a pool league event before.

After trial and much pushing and Troy going to see another attorney, the trial attorney finally gave in and hired an investigator to question the juror about knowing Troy, Derek and Joe.  Juror Number 1 claims he didn’t know “Joe” by his last name and that  Joe would occasionally sub for him on his team if he couldn’t make it to a game.   He stated he had only seen Troy and Derek in the bar before.  Well the family knew better. Troy, Derek and Joe knew better. Pool league records were subpoenaed from the pool league and it was a shocker!

Juror Number 1 and Witness Joe

• played on the SAME pool team (Juror Number 1’s team) in 2006
• played against each other from 2004 through 2009 on several occasions

Juror Number 1 and Troy (Defendant’s brother)

• played against each other from 2004 through 2009 on several occasions

Juror Number 1 and Witness Derek

• played against each other from 2004 through 2009 on several occasions
• Derek played against Joe and Juror Number 1 when they were on Juror Number 1’s team together in 2006 on two different occasions.

WAIT! Didn’t Juror Number 1 tell the investigator that Joe “subbed” for him? But the pool records  say they WERE ON THE SAME TEAM.

Well this is all harmless right? Well that’s how the Judge saw it.

The family didn’t like that answer so the investigator was hired to investigate all the jurors.  Unfortunately there was only a small amount of time to get them all question before the case went to the Appellate Court.  So five of them still to do this day have not been questioned.

Let’s see what they had to say:

Juror Number 2: Has no memory of Juror Number 1 knowing the family and “tries to wipe it all from memory after that experience.”

Juror Number 3: Never called back to talk to the investigator.

Juror Number 4: Couldn’t remember the jury foreman.

Juror Number 5:  Stated that during a break after “Joe” testified, Juror Number 1 stated he knew the (Petitt) family. Juror Number 5 believes that Juror Number 1 meant he knew of the Petitt family.

Juror Number 6: Was never found.

Juror Number 7: Stated that Juror Number 1 said that he had seen some of the Petitt family in bars and that this was stated during the Voir Dire in front of the Judge and that Juror Number 1 nominated himself as jury foreman.

Juror Number 8: Stated that they didn’t remember Juror Number 1 knowing the family.

Juror Number 9: Stated they did not remember whether or not Juror Number 1 knew the family but remember Juror Number 1 telling the jurors he knew the cops and that they could be trusted.

Juror Number 10: Never called back to talk to investigator.

Juror Number 11: Stated remembering Juror Number 1 stating he knew the family but not personally.

Juror Number 12: Stated remembering that Juror Number 1 stated that he wouldn’t have been surprised if they came in the bar. Juror Number 12 stated that this doesn’t reasonably mean the Juror Number 1 knew the Petitt family.

Alternate Juror Number 1 and 2 have not been interviewed.

Wow! Juror Number 7 states that Juror Number 1 said ” he seen some of the Petitt family in bars in front of the Judge”. Well friends and family were in the Court room and they never heard any of that and they have the transcripts.  Mr. Juror Number 1 only states he knew two officers, which from what Juror Number 9 says “can be trusted”.

Even after the pool records, the affidavits including an affidavit with 18 signatures from patrons at local bars who have seen Juror Number 1 play pool with Troy, Derek and Joe, after it was all presented in Court Denny and the family were given the same response. Harmless.

So what happened to “Voir Dire refers to an oath to tell the truth, i.e., to say what is true, what is objectively accurate or subjectively honest, or both.“?

Detached Reflection Cannot Be Demanded in the Presence of an Uplifted Knife

“Detached Reflection Cannot Be Demanded in the Presence of an Uplifted Knife” ~ Brown v. United States (1921)

That sentence was taken from an opinion from the U.S. Supreme Court in 1921. The opinion was written by Justice Holmes.

It should be read to every jury by every defense attorney that ever steps foot into a court house with the intent of defending a self defense trial. It should also be further explained to the jury that it means you simply don’t have time in the presence of an uplifted knife (or fist) to think about how you’re going to react and how it will affect the person holding the knife.

So when the Prosecutor, Gray Noll at Denny’s trial marched over to him sitting next to his attorney and leaned in, looked him in the eye and yelled “YOU COULD HAVE WALKED OUT THE DOOR”, (obviously a show for the jury), the Defense should have came back and said “How?”.

Tell me HOW could a man who just took 8 or 9 blows to the face, whose attacker is coming off the couch to do it all over again, who himself is extremely intoxicated could possibly for a split second say “you know what Tony, I’m going to walk out the door now.”? How?

He couldn’t. He couldn’t because in all of his intoxication he had to make a split second decision, because he knew Tony would not stop, why would tonight be any different. Because it’s his brother he’s beating this time? Nope, that didn’t matter to Tony and Tony was going to finish what he started.

While in the middle of being beaten you don’t have time to think about walking out the door.  Explaining this fact to the jury involves explaining reaction time.  Lisa J. Steele from the National Association of Criminal Defense Lawyers states that “By the logic of self-defense, the Defendant must react to the aggressor’s threatening actions. Unfortunately, reaction is slower than action. Self-defense trainers call this “the reaction gap.”  The defense attorney may need to explain to the jury the differences between anticipated stimulus and simple reflexive response; unanticipated stimulus and simple reflexive response; and complex response.”

“The average adult male will react to an anticipated stimulus in approximately one quarter of one second. However, that is reaction to anticipated stimulus. When an attack is underway against a person, and that attack suddenly breaks off or veers off, that change in events is unanticipated. Because the person reacting to the attack has to mentally process the change in events and determine what to do now (i.e., stop firing a rapid sequence of shots that was begun in self-defense), the time it takes to react to the unanticipated stimulus is much longer.” (“The Use of Lethal Force in Self-Defense” copyright ALI-ABA, circa 2001).

Reaction time was never explained to the jury at Denny’s trial.  Nor was it explained that being intoxicated would effect his reaction timing. The Defense attorney, Michael Costello, never hired a single expert to testify to the levels of alcohol found in Denny’s system. The Defense attorney said to the jury “he was drunk”.  That’s it.

The Judge believed he was drunk.  He said he was allowing in Involuntary Manslaughter as an option for the jury to choose because “Mr. Petitt here got the tar beat out of him.  His judgment had been clouded by extreme use of alcohol. I’m going to give it (involuntary manslaughter), so get it prepared.” This of course was not said in front of the jury.

Reaction or intoxication or both. Either way your mind wouldn’t have time to process the consequences of your actions until it was over.

Detached reflection cannot be demanded in the presence of an Uplifted FIST.